Court case casts pall on Canada’s sterling election reputation

OTTAWA — A fight in Canada’s top court over the 2011 federal election results in one Toronto riding has shone a spotlight on Canada’s election practices, and some now argue significant changes are needed to protect the integrity of the country’s democracy.

In July, The Supreme Court of Canada heard arguments on whether the May 2011 election results for Etobicoke Centre should be thrown out because of “irregularities” in the counted votes. A decision is coming Thursday.

The controversy has highlighted issues — including training of workers and of voter accessibility — that are likely creating some “soul searching” within Elections Canada, said David Mitchell, the president and CEO of the independent, Ottawa-based Public Policy Forum.

“I worry, and I’m sure I’m not alone in this, that our sterling reputation at managing democratic elections could be in jeopardy if not addressed squarely by our governments, by our electoral management bodies and, when necessary, by our judiciary,” Mitchell said.

“No amount of planning can ever ensure that there is never any mistake made,” said Jean-Pierre Kingsley, Canada’s former Chief Electoral Officer. “But it’s a major issue that occurred here. It doesn’t matter how the judgment goes. They will obviously review how to make it such that there’s a double check on the paperwork.”

The court judgment for Etobicoke Centre will determine once and for all whether the election results for that riding will be declared null and void.

In the 2011 election, Conservative MP Ted Opitz originally won by a 26-vote margin. But his election was overturned by the Ontario Superior Court in May after Liberal MP Borys Wrzesnewskyj succeeded in proving that at least 79 votes were counted that should not have been because of irregularities – in some cases because the registration certificates that allowed voters to mark a ballot could not be found.

Elections Canada declined to comment as the case was before the court. But in late September, while speaking at the Economic Club of Canada in Ottawa, Canada’s Chief Electoral Officer Marc Mayrand said the “procedural failures” in Etobicoke Centre could be hurting trust in Canada’s electoral process.

“While we can make administrative changes to enhance our processes, these likely won’t be enough. Legislative changes may also be necessary to respond to Canadians’ concerns regarding the electoral process and make the system less prone to errors,” Mayrand said.

And in late May, Mayrand told the House of Commons Procedure and House Affairs Committee that Elections Canada will have to revisit its processes for recruiting and training workers, and their compliance with procedures at polling stations.

“An election lasts one day. We hire 230,000 people and there are no do-overs. Often, that is the first and only day when these people work. So we are going to have to find some way of handling this,” Mayrand said.

About 180,000 poll officials worked on the last federal election day. Poll clerks and deputy returning officers, who handle much of the polling station responsibilities, are trained for three hours prior to election day, Elections Canada said.

By comparison, elections workers in Libya were trained for three days, said Liberal MP Jim Karygiannis, who acted as an observer there in early July for the country’s first parliamentary election after last year’s overthrow and killing of longtime leader Moammar Gadhafi.

More training here could mean the difference between flawed election results and an election that’s “fool-proof, bullet proof and stupid proof,” Karygiannis said.

“I used to say democracy was best practiced in Canada, but I sort of look at it now and say ‘hmm, do I really want to say those words to people?’”

Kingsley argued that the training in Canada is handled satisfactorily.

In terms of Etobicoke Centre, “we’re talking about a small group of people in a very particular circumstance where the job is not performed the way that it’s supposed to be performed.”

Some critics have also argued that Canada should abolish the practice of allowing qualified voters who for whatever reason aren’t on the National Register of Electors to register at the polling station itself – a practice at the heart of the Etobicoke Centre case.

Election-day voter registration is largely uncommon outside Canada. In the United Kingdom, for instance, if a person isn’t already registered by the time voting day arrives, they don’t vote – period.

There are cases all over the world where elections are very close and clerical mistakes are found within the margin of victory, said Andrew Ellis, an international elections expert with the International Institute for Democracy and Electoral Assistance.

“But something that struck me, reading the detail of this, is that you could have avoided a big part of it if the procedure for registering on the same day didn’t exist.”

In order to get his or her name added to the voter’s list on the day of the election, a person must register with an officer at the poll and sign a registration certificate completed by that officer, according to Elections Canada.

Upon showing satisfactory proof of identity and address — which can include being vouched for by another elector whose name appears on the list of electors in that same polling division — that person is allowed to vote if they’re qualified to do so.

In Etobicoke Centre, many of the contested votes were due to errors in this process – in some cases the paperwork was filled out incorrectly or couldn’t be found.

But abolishing the procedure, while resolving some issues such as the burden on those working at the polls, would create new problems, Ellis said.

“You could almost say it’s a general rule that if you change laws or procedures to tighten up against unintentional confusion, you will probably disenfranchise some people who are qualified to vote,” he said.

At the same time, Ellis said, loosening the reigns to make things easier for those who are qualified to vote makes it easier for those “trying to do nefarious things.”

About 700,000 people registered at the polls in the 2011 election, Kingsley said, and most of them were obviously handled in a satisfactory way. But in Etobicoke Centre, he said, something went wrong.

These were important mistakes, Kingsley said. While there are always a small proportion of mistakes that get into any system, in a very close election these mistakes take on a special meaning, he said.

If the Supreme Court of Canada sides with Wrzesnewskyj, the election results for Etobicoke Centre will be tossed out. Prime Minister Stephen Harper would then have six months in which to call a byelection.

But it’s how Elections Canada acts in the aftermath of the court decision that will be important for Canada’s reputation, Ellis said. Elections Canada had developed a stellar reputation as a strong and “fearlessly independent” electoral administration, he added.

“The reputation of an election commission is built on how well they perform, and a part of that is how they handle difficult cases and times when there are problems,” Ellis said.

“It may involve changing regulations. It may involve training issues. It may even involve changes to legislation, in which case the responsibility is with Parliament. Any of those things would be legitimate and sensible responses.”

But what happened in Etobicoke Centre is not a situation that calls for election law being changed, Kingsley said.

After every election, the Chief Electoral Officer does a review, Kingsley said, and modifications are introduced when needed. Consultations take place with everyone who was involved with the election process.

What has happened since the Etobicoke Centre results were first challenged is actually demonstrating the strength of the system, Kingsley said. Parliament foresaw that there could be mistakes, and made provisions for “the ultimate correction” – a redo, he said.

“It’s quasi-impossible to ever come up with a better system. I’ve gone to many countries around the world and when you have a contested election going to a Supreme Court, what more do you want?”

But between Etobicoke Centre and another court case – a lawsuit by the Council of Canadians aimed at overturning the election results in seven ridings where voters reported receiving deceptive telephone calls – what Canada really needs is a total system overhaul, Karygiannis said.

“The integrity that used to be Canada, where people looked to Canada as a democratic country, as a country that was the light that we were shining to the rest of the world as a beacon they could follow…it’s not a pleasant feeling now. Our name, because of the last election, has been tarnished,” he said.